(a) Issuance. The court must issue an arrest warrant for each defendant
named in the
indictment or information, if it is supported by a showing of probable cause as required in
Rule 4(a). The court need not issue a warrant for any defendant who has been held to answer
for any offense charged. After a showing of probable cause, the court may issue a summons
instead of a warrant on its own motion or at the request of the prosecuting attorney. On like
request or on its own motion, the court may issue more than one warrant or summons for the
same defendant. The court must issue the arrest warrant or summons to the sheriff or other
person authorized by law to execute or serve it. If a defendant fails to appear in response to
a summons, the court must issue a warrant.

(b) Form.

(1) Warrant. The warrant must conform to Rule 4(b)(1)
except that it must be signed by the
clerk, describe the offense charged in the indictment
or information, and command that the
defendant be arrested and brought before the court. The court may fix the amount of bail and
endorse it on the warrant.

(2) Summons. The summons must be in the same form as a warrant
except that it must
require the defendant to appear before the court at a stated time and place.

(c) Execution or service; and return.

(1) Execution or service. The warrant must be executed or the
summons served as provided
in Rule 4(c)(1) and (2).

(2) Return. A warrant or summons must be returned in accordance
with Rule 4(d).

(d) Warrant or Summons by Telephone or Other Means. In
accordance with Rule 4.1, the
magistrate may issue a warrant or summons based on information communicated by
telephone or other reliable electronic means.

EXPLANATORY NOTE

Rule 9 was amended, effective March 1, 2006;
__________________.

Rule 9 is an adaptation of Fed.R.Crim.P. 9, and provides for the
issuance of a warrant or
summons upon indictment or information. The Fourth Amendment provides that "no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing... persons...to be seized." If an indictment has been returned, the
Fourth Amendment is satisfied and the warrant can issue on request without more, since the
indictment is made on the oath of the grand jury. The provision for showing of the "probable
cause" as required in Rule 4(a) makes explicit the fact that a warrant or summons can issue
on the basis of an information only if the information or affidavit filed with the information
shows probable cause for the arrest warrant or summons. Generally, prosecution on
information has as a prerequisite a determination of probable cause at a preliminary
examination. Exceptions are listed in N.D.C.C. § 29-09-02.

Subdivision (b) incorporates by reference the provisions of Rule 4(b)
concerning the form
of the warrant or summons. The minor differencesadditional
requirements of this rule reflect
the different stage in the proceeding at which the warrant or summons is being issued.
The
warrant upon an indictment or information must be signed by the clerk and must describe the
offense charged in the indictment or information. The amount of bail may be fixed by
the
court and endorsed on the warrant. See Rule 46 (Release from Custody).

SubsectionParagraph (c)(1)
incorporates by reference portions of Rule 4(c) dealing with
the execution of a warrant and service of a summons.

SubsectionParagraph (c)(2), dealing
with return, is virtually the same as Rule 4(d),
providing for return of a warrant or summons issued on the complaint. At the request of the
prosecuting attorney, any unexecuted warrant must be returned and canceled. On or before
the return day, the person to whom a summons was delivered for service must make a return
to the court.

Subdivision (d) was added, effective_____________, to allow the magistrate to
issue a
warrant or summons based on information communicated by telephone or other reliable
electronic means under the procedure set out in Rule 4.1.

Rule 9 was amended, effective March 1, 2006, in response to the
December 1, 2002,
revision of the Federal Rules of Criminal Procedure. The language and organization of the
rule were changed to make the rule more easily understood and to make style and
terminology consistent throughout the rules.